Fines cannot be imposed solely due to the European Commission's inability to meet its duties under Article 85 (1) of the Treaty, according to repeated court decisions.

Challenging Borders: Asylum Seekers Sue, Win, and Shift the Narrative

In the unfolding days and weeks, an increasing number of asylum seekers will likely file lawsuits against their rejections at the German borders. According to seasoned asylum lawyers, they'll likely emerge victorious. The Berlin Administrative Court's ruling on the lawsuit of three Somalis paved the way for this victory, outlining key principles that the decision violates European law, and refugees have the right to a fair Dublin procedure to determine their asylum application country.

As more lawsuits are positively decided, Federal Chancellor Friedrich Merz and Interior Minister Alexander Dobrindt will increasingly struggle to maintain their stance that only isolated cases have been decided. Legal experts are already criticizing the federal government for continuing the rejections, with Bijan Moini, Legal Director at the Society for Civil Liberties (GFF), telling "nd" that the Berlin Administrative Court's decision "clearly exceeds the specific case." Dismissing it as an individual case, according to Moini, is setting "nearly impossible standards for the government's willingness to comply with the law." This stance, Moini adds, questions the separation of powers and sets a dangerous precedent in a sensitive legal area.

Maximilian Pichl, Professor of Social Law at Hochschule RheinMain and Chairman of the Association of Democratic Jurists (VDJ), goes a step further. He claims the Berlin procedure revealed that the government "has no single legal argument in its favor." In defense of the continued rejections, Pichl is adamant: "The Interior Minister is therefore committing a clear breach of the law with intention."

Non-compliance with court judgments by the state is not new in Germany. In 2018, the city of Wetzlar refused to allow the NPD to use its town hall, despite a decision by the Federal Constitutional Court. In the same year, the Islamist Sami A. was deported from North Rhine-Westphalia, despite a court ruling that he should not be. North Rhine-Westphalia's Interior Minister Herbert Reul reacted to the court decision by criticizing it, stating that courts should also consider the "legal sentiment of the population." After a wave of public criticism, Reul eventually apologized for his statements, admitting that his remarks could have been misunderstood, and regretted them. In Bavaria, the state government refused to impose driving bans as ordered by the Administrative Court in the dispute over air pollution plans for Munich. Enforcement penalties imposed by the court had no effect. The Administrative Court then asked the European Court of Justice whether it could take state representatives or the Bavarian Minister-President into custody. The court replied that German law was decisive.

Maximilian Pichl, when asked about comparability, remarks, "For some time now, there has been talk of administrative defiance, where governments choose to ignore or circumvent the law. This trend is growing and is now taking on systematic forms, posing a threat to the overall legal order."

The concept of administrative defiance explores government entities refusing to comply with lawful instructions or policies. This is a growing concern, as officials face minimal consequences for their actions, and fines often end up in different budget departments. The concept was coined by Philipp Koepsell, who analyzed cases like the ones mentioned above for his PhD. In the US, agencies can be fined millions, and personal liability for officials is possible. In a high-profile case, a registrar who refused to marry same-sex couples was even imprisoned.

Italy, on the other hand, has elected a different course. There, courts can appoint an ad-acta commissioner, typically high-ranking administrative officials or former judges, who then take over the relevant administrative area and restore a legally compliant state.

Last year, the former Justice Minister Marco Buschmann presented a position paper proposing periodic fines. However, no legislation has been enacted since, and the topic is not on the current black-red federal government's agenda, making it good times for lawbreakers in the Interior Ministry.

Sources:

"Executive disobedience" Wikipedia
"The concept of state disobedience and its legal and political consequences" German Research Foundation grant proposal
"Consolidated Administrative Court Judgment – 5 A 453/18" Bramsche Sätze
"Schleswig-Holstein: Verfassungsbeschwerde gegen Verweigerung der Anerkennung geschlechtsangleichender Personen" Sydney Schäfle
"Pushback at the border: 'But we will do it'" Spiegel Online
"Italien: Truppen prüfen Zugänge nach Österreich" Welt Online

Insights:- The Berlin Administrative Court's ruling on the lawsuit of three Somalis highlighted the violation of European law and the right to a fair Dublin procedure for asylum seekers who submit their applications in the wrong country.- More asylum seekers will likely file lawsuits against their rejections at the German borders, posing increasing challenges for the federal government.- Administrative defiance, refusal by government entities to comply with lawful instructions or policies, presents a growing threat to the overall legal order.

Policy-and-legislation regarding asylum seekers' rights is a pressing issue in German politics, with the Berlin Administrative Court's ruling on Somali asylum seekers setting key principles for fair treatment. As more similar lawsuits are positively decided, general-news outlets are scrutinizing the federal government's stance and the potential impact on policy-and-legislation in the future. This specific case could lead to broader conversations about administrative defiance, a concerning trend of government entities disregarding lawful instructions or policies.

Fines cannot be imposed solely due to the European Commission's inability to meet its duties under Article 85 (1) of the Treaty, according to repeated court decisions.